A(n) (Im)Possibility of Justice in the Case of Conservation of Marine Biodiversity of Areas Beyond National Jurisdiction

Abstract

The advent of biotechnology in 1980 profoundly changed the attitude of scientists, and more recently of lawyers working with international marine environmental law, as well as in the fields of science and technology, and intellectual property and patent law, towards biological diversity in far-off marine areas, including the deep seabed. The extraordinary protection and adaptation properties of the deep seabed organisms seem to represent invaluable material for the pharmaceutical innovation, and especially life-saving drugs. Bioprospecting, a technique that consists of exploring the ocean biodiversity by identifying and harvesting commercially valuable bio-resources, ended up alerting the need, at the global scale, for greater legal certainty in this area. Namely, bioprospecting and further bio-remediation, and numerous pharmaceutical applications trigger the debate about the extent of ownership rights over these discoveries; as well as which discoveries, and to what extent, represent inventions, hence also involving questions of patent deposition. The mere assumption that the deep seabed should be exploited, and possibly appropriated, necessitates a serious discussion.

In 2015, the United Nations (UN) members launched the consultative process on a global agreement on the conservation and sustainable use of the marine biological diversity of areas beyond national jurisdiction (ABNJs). To date, the negotiation positions are various. Some countries focus on the exploitation of marine genetic resources and the rights to those resources on a first-come-first-served basis; few see these resources’ conservation and sustainable use as a priority; many are those discussing a fair, equitable and transparent risk and benefits-sharing related to the resources in those areas through the system of patents. In March 2017, two ground-breaking domestic decisions, namely, a bill in New Zealand and a municipal court’s ruling in India, have recognised the ecosystems in question (the rivers, in the case at hand) as living entities, thus giving them a legal personality, including standing in court proceedings. The Indian court’s decision has in particular implied that any harm, including pollution, to the rivers will be legally equivalent to harming a living human. These newest environmental law developments suggest that harming, especially through pollution that may be induced by the bioprospecting, the biodiversity of the deep seabed where forms of life with valuable genes live, might amount in not so distant future to a legal offense. This might put most of the agenda of the new instrument defending the exploration and exploitation of marine genetic resources on quite a precarious perch.

This article aims at:

(i) outlining and unpacking the multilayered legal space that currently and prospectively governs marine biodiversity of ABNJs, and

(ii) mapping out the more discursive and narrative space that has impacted the legal mechanisms at play and that also dominates current consultations and future negotiations in the field.

The study discusses together UNCLOS, CBD and WTO TRIPS in an attempt to move further the debate about the nexus between conservation and justice. Overall, the objective is to analyse relevant present contestations and likelihoods, and ultimately expose to what extent, in terms of justice, the existing theory, instruments, agenda, and course for action are based on differing, and oftentimes simply irreconcilable projects. Lastly, the article discusses alternative visions of justice beyond present bifocal projects ‘man-nature’. While drafting this article, some of such visions have even become reality, as, for example, granting representation to such non-human entities as rivers.

Keywords: Biodiversity, biotechnology, areas beyond national jurisdiction, UNCLOS, CBD, WTO TRIPS, freedom of the high seas, common heritage of mankind

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